I`m not sure about the German law, but at least in the U.S. it`s become a gray area in recent years, as the Library of Congress has made some exemptions to the DMCA for games that run on hardware that is no longer produced and sold commercially. The exception allows archives and libraries to host ROMs. Archive.org, better known as a website dedicated to Internet archiving, has a large collection of ROMs available for download, all of which are supposed to be legal to download and use, and they don`t seem to have had any legal problems about it. For starters, downloading a copy of a game you don`t own isn`t legal. It`s no different than downloading a movie or TV show you don`t own. «Let`s say I have an old Super Nintendo and I love Super Mario World, so I download a ROM and play it,» Bambauer said. «It`s a copyright violation.» As for the legal consequences, you could be sued by the publisher himself and sued for a ridiculous amount if he wants to make an example of you. However, the chances of this happening (at least on the internet at this point) are incredibly slim. If you`re someone who wants to revisit the past and nurture and experience your nostalgia with the era of button squashing and accurate platforming, you might be tempted to create your own retro gaming setup.
This can be done in several ways. You can use your PC to run emulators, or you can use a single-board computer like the Raspberry Pi to run RetroPie or Recalbox. The only problem you face is where do you get your hands on the games (legally)? There are discussions within the gaming community about emulators. Those interested in history and its preservation argue that making game emulators and ROMs and archiving them for posterity is our responsibility for the next generation of players, while many owners of game intellectual property rights argue that piracy and unofficial ROMs and emulators (which are not owned and distributed by the original intellectual property holder) should be returned Illegal. In the My Abandonware FAQ, you`ll notice that while they allow users to download the games, they don`t assume any responsibility for downloads that are «considered illegal in your country.» So, if you are concerned about downloading a game from this site, we recommend trusting your instincts. Nevertheless, my abandonware has been in service since 2009 and continues to be online, so interpret this as you wish. Although these sites have shared Nintendo ROMs, downloading them is also likely to be illegal, even if you already own these games on an old cartridge or disc. To learn more about how the law views game emulators, I spoke to three different IP lawyers. Now, if you back up a copy of a medium you already own — like ripping a music CD to MP3 so you can download it to an iPod — previous lawsuits have ruled that there is no damage to the market. You have already purchased the music, simply save it and transfer your purchase to another medium. This concept is known as the fair use standard.
In this sense, if you already own a game and save your game in a ROM file to play on another medium, it is legally defensible. If you`re downloading a ROM of a game you already own, this might be fine too. But as I wrote above, video game copyright hasn`t been tested in court, so the jury still hasn`t closed (pun intended). Downloading a copy of a game you already own, or creating a digital copy by throwing a cassette or disc of a game into your collection, is a gray area at best. For example, in the United States, making a digital copy of a game you already own and for your own use should be fair dealing. In contrast, a country like Australia has no equivalent of fair dealing in its books. Therefore, the legality of such behavior largely depends on where you are in the world. Even if it`s illegal, simply downloading games is a civil matter at worst, not a criminal one (meaning you could theoretically be prosecuted but not arrested and charged with a crime). When distributing copyrighted software without permission, potential criminal charges come into play. Again, at least in the United States, this is not certain for Germany. «Once you`ve distributed a ROM, most people who download it probably don`t have legal copies of the game,» Bambauer said.
«Then it`s damage to the market because Nintendo should be able to sell to these people.» Emulators are usually completely free and are generally considered legal in most places. However, the situation is different when it comes to video game ROMs. That`s pretty clear, right? And that more or less matches the language regarding ROMs on Nintendo`s website, where the company argues that downloading ROMs, whether you own the game or not, is illegal. Still, many people consider abandonware fair dealing, as an out-of-business developer is unlikely to sue for copyright infringement. It`s possible for someone to file a DMCA takedown or take legal action, but it`s also highly unlikely. A common online argument is that extracting a ROM from a cartridge you own is completely legal, but downloading ROMs from the internet is a crime. Devices like the $60 Retrode allow anyone to rip a Super Nintendo or Sega Genesis game via USB and cite their legality via downloads as a major selling point. Finally, ripping a CD you own with iTunes or other software is generally considered legal, at least in the United States. Note: Modifying a ROM may be illegal in your region. Well, it`s not black and white; Only one possible legal argument.